pemn&life* 
pH8.5 



according to Act of Conpross, in the year 1813, by Ticknor and Fields, in the Clerk's Office of the 
District Court of the District of Massachusetts. 



@r<, Mow to Treat the Re&eZ States* 

BY HON. CH-AJRUES SXJ3CLVEIS,. 



At this moment our Domestic Rela- 
tions all hinge upon one question : How 
to treat the Rebel States f No patriot 
citizen doubts the triumph of our arms 
in the suppression of the Rebellion. Ear- 
ly or late, this triumph is inevitable. 
It may be by a sudden collapse of the 
bloody imposture, or it may be by a 
slower and more gradual surrender. For 
ourselves, we are prepared for either al- 
ternative, and shall not be disappointed, 
if we are constrained to wait yet a little 
longer. But when the day of triumph 
comes, political duties will take the place 
of military. The victory won by our sol- 
diers must be assured by wise counsels, so 
that its hard-earned fruits may not be 
lost. 

The relations of the States to the Na- 
tional Government must be carefully con- 
sidered, — not too boldly, not too timidly, 
— in order to see in what way, or by what 
process, the transition from Rebel forms 
may be most surely accomplished. If I 
do not greatly err, it will be found that 
the powers of Congress, which have thus 
far been so effective in raising armies and 
in supplying moneys, will be important, 
if not essential, in fixing the conditions 
of perpetual peace. But there is one 
point on which there^in be no question. 
The dogma and delusion of State Rights, 
which did so much for the Rebellion, must 
not be allowed to neutralize all that our 
arms have gained. 

Already, in a remarkable instance, the 
President has treated the pretension of 
State Rights with proper indifference. 
Quietly and without much discussion, he 
has constituted military governments in 
the Rebel States, with governors nomi- 
nated by himself, — all of which testifies 
against the old pretension. Strange will 
it be, if this extraordinary power, amply 
conceded to the President, is denied to 
Congress. Practically the whole ques- 



s^ 



tion with which I began is opened here. 
Therefore to this aspect of it I ask your 
first attention. 



CONGRESSIONAL GOVERNMENT VS.'" 
MILITARY GOVERNMENT. 

Four military governors have been al- 
ready appointed : one for Tennessee, one 
for South Carolina, one for North Caro- 
lina, and the other for Louisiana. So far 
as is known, the appointment of each 
was by a simple letter from the Secretary 
of War. But if this can be done in four 
States, where is the limit ? It may be 
done in every Rebel State, and if not in 
every other State of the Union, it will be 
simply because the existence of a valid 
State government excludes the exercise 
of this extraordinary power. But assum- 
ing, that, as our arms prevail, it will be 
done in every Rebel State, we shall then 
have eleven military governors, all de- 
riving their authority from one source, 
ruling a population amounting to upwards 
of nine millions. And this imperatorial 
dominion, indefinite in extent, will also 
be indefinite in duration ; for if, under 
the Constitution and laws, it be prop- 
er to constitute such governors, it is 
clear that they may be continued with- 
out regard to time, — for years, if you 
please, as well as for weeks, — and the 
whole region which they are called to 
sway will be a military empire, with all 
powers, executive, legislative, and even 
judicial, derived from one man in Wash- 
ington. Talk of the " one-man power.'" 
Here it is with a vengeance. Talk of 
military rule. Here it is, in the name 
of a republic. 

The bare statement of this case may put 
us on our guard. We may well hesitate 
to organize a single State under a military 
government, when we see where such a 
step will lead. If you approve one, you 













50S 



Our Domestic Relations. 



[October, 



must approve all, and the National Gov- 
ernment may crystallize into a military 
despotism. 

In appointing military governors of 
States, we follow an approved example 
in certain cases beyond the jurisdiction 
of our Constitution, as in California and 
Mexico after their conquest and before 
peace. It is evident that in these cases 
there was no constraint from the Consti- 
tution, and we were perfectly free to act 
according to the assumed exigency. It 
may be proper to set up military govern- 
ors for a conquered country beyond our 
civil jurisdiction, and yet it may be ques- 
tionable if we should undertake to set 
up such governors in States which we 
all claim to be within our civil jurisdic- 
tion. At all events, the two cases are 
different, so that it is not easy to argue 
from one to the other. 

In Jefferson's Inaugural Address, where 
he develops what he calls " the essen- 
tial principles of our government, and 
consequently those which ought to shape 
its administration," he mentions " the su- 
premacy of the civil over the military au- 
thority" as one of these " essential prin- 
ciples," and then says : — 

" These should be the creed of our po- 
litical faith, — the text of civil instruction, 
— the touchstone by which to try the ser- 
vices of those we trust; and should we 
wander from them in moments of error or 
alarm, let us hasten to retrace our steps, 
and to regain the road which alone leads 
to peace, liberty, and safety." 

In undertaking to create military gov- 
ernors of States, we reverse the policy of 
the republic, as solemnly declared by 
Jefferson, and subject the civil to the 
military authority. If this has been done, 
in patriotic ardor, without due considera- 
tion, in a moment of error or alarm, it 
only remains, that, according to Jeffer- 
son, we should " hasten to retrace our 
steps, and to regain the road which alone 
leads to peace, liberty, and safety." 

There is nothing new under the sun, 
and the military governors whom we are 
beginning to appoint find a prototype in 
the Protectorate of Oliver Cromwell. Af- 



ter the execution of the King and the 
establishment of the Commonwealth, the 
Protector conceived the idea of parcelling 
the kingdom into military districts, of 
which there were eleven, — being pre- 
cisely the number which it is now pro- 
posed, under the favor of success, to es- 
tablish among us. Of this system a great 
authority, Mr. Hallam, in his " Consti- 
tutional History of England," speaks 
thus: — \ 

" To govern according to law may 
sometimes be an usurper's wish, but can 
seldom be in his power. The Protector 
abandoned all thought of it. Dividing 
the kingdom into districts, he placed at 
the head of each a major-general, as a 
sort of military magistrate, responsible for 
the subjection of his prefecture. These 
were eleven in number, men bitterly hos- 
tile to the Royalist party, and insolent to- 
wards all civil authority." * 

Carlyle, in his " Life of Cromwell," 
gives the following glimpse of this mili- 
tary government : — 

" The beginning of a universal scheme 
of major - generals : the Lord- Protector 
and his Council of State having well con- 
sidered and found it the feasiblest, — ' if 
not good, yet best.' 'It is an arbitrary 
government,' murmur many. Yes, ar- 
bitrary, but beneficial. These are powers 
unknown to the English Constitution, 1 
believe; hut they are very necessary for 
the Puritan English nation at this time." f 

Perhaps no better words could be 
found in explanation of the Cromwellian 
policy adopted by our President. 

A contemporary ^jjmij^ Colonel Lud- 
low, whose " Memoirs " add to our au- 
thentic history 0/ those interesting times, 
characterizes these military magistrates 
as so many ''/bashaws." Here are some 
of his words': — 

"The major-generals carried things 
with unheard-of insolence in their sev- 
eral precincts, decimating to extremity 
whom they pleased, and interrupting 

% Constitutional History of England, Vol. II. 
p. 340. 

. ' f Carlyle's Life of Cromwell, Part IX. Vol. 
'il. p. 168. 




1863.] 



Our Domestic Relations. 



509 



the proceedings at law upon petitions 
of those who pretended themselves ag- 
grieved, threatening such as would not 
yield a manly submission to their orders 
with transportation to Jamaica or some 
other plantation in the West. Indies."* 

Again, says the same contemporary 
writer : — 

" There were sometimes bitter reflec- 
tions cast upon the proceedings of the 
major-generals by the lawyers and coun- 
try-gentlemen, who accused them to have 
done many things oppressive to the peo- 
ple, in interrupting the course of the law, 
and threatening such as would not sub- 
mit to their arbitrary orders with trans- 
portation beyond the seas." f 

At last, even Cromwell, at the height 
of his power, found it necessary to aban- 
don the policy of military governors. He 
authorized his son-in-law, Mr. Claypole, 
to announce in Parliament, " that he 
had formerly thought it necessary, in re- 
spect to the condition in which the na- 
tion had been, that the major-generals 
should be intrusted with the authority 
which they had exercised ; but in the 
present state of affairs he conceived it 
inconsistent with the laws of England 
and liberties of the people to continue 
their power any longer." f 

The conduct of at least one of our mil- 
itary magistrates seems to have been a 
counterpart to that of these "bashaws" 
of Cromwell ; and there is no argu- 
ment against that early military despot- 
ism which may not be urged against any 
attempt to revive it in our day. Some 
of the acts of Governor Stanley in North 
Carolina are in themselves an argument 
against the whole system. 

It is clear that these military magis- 
trates are without any direct sanction 
in the Constitution or in existing laws. 
They are not even " major-generals," or 
other military officers, charged with the 
duty of enforcing martial law ; but they 
are special creations of the Secretary of 
"War, acting under the President, and 
charged with universal powers. As gov- 

* Ludlow's Memoirs, p. 559. 

t Ibid. p. 5S0. \ Ibid. p. 532. 



ernors within the limits of a State, they 
obviously assume the extinction of the 
old State governments for which they 
are substituted ; and the President, in 
appointing them, assumes a power over 
these States kindred to his acknowledged 
power over Territories of the Union ; but, 
in appointing governors for Territories, he 
acts in pursuance of the Constitution and 
laws, by and with the advice and consent J 
of the Senate. 

That the President should assume "the 
vacation of the State governments is of 
itself no argument against the creation 
of military governors ; for it is simply 
the assumption of an unquestionable fact. 
But if it be true that the State govern- 
ments have ceased to exist, then the way 
is prepared for the establishment of pro- 
visional governments by Congress. In 
short, if a new government is to be sup- 
plied, it should be supplied by Congress 
rather than by the President, and it 
should be according to established law 
rather than according to the mere will 
of any functionary, to the end that ours 
may be a government of laws and not 
of men. 

There is no argument for military gov- 
ernors which is not equally strong for 
Congressional governments, while the lat- 
ter have in their favor two controlling 
considerations: first, that they proceed 
from the civil rather than the military 
power ; and, secondly, that they are cre- 
ated by law. Therefore, in consider- 
ing whether Congressional governments 
shoidd be constituted, I begin the dis- 
cussion by assuming everything in their 
favor which is already accorded to the 
other system. I should not do this, if 
the system of military dictators were not 
now recognized, so that the question is 
sharply presented, which of the two to 
choose. Even if provisional governments 
by Congress , are not constitutional, it 
does not follow that military govern- 
ments, without the sanction of Congress, 
can be constitutional. But, on the oth- 
er hand, I cannot doubt, that, if milita- 
ry governments are constitutional, then, 
surely, the provisional governments by 



510 



Our Domestic Relations. 



[October, 



Congress must be so also. la truth, 
there can be no opening for military 
governments which is not also an opening 
for Congressional governments, with this 
great advantage for the latter, that they 
are in harmony with our institutions, 
which favor the civil rather than the 
military power. 

In thus declaring an unhesitating pref- 
erence for Congressional governments, I 
am obviously sustained by reason. But 
there is positive authority on this iden- 
tical question. I refer to the recorded 
opinion of Chancellor Kent, as follows : — 

" Though the Constitution vests the 
executive power in the President, and 
declares him Commander-in-Chief of the 
army and navy of the United States, 
these powers must necessarily he subordi- 
nate to the legislative power in Congress. 
It would appear to me to be the policy 
or true construction of this simple and 
general grant of power to the President, 
not to suffer it to interfere with those 
specific powers of Congress which are 
more safely deposited in the legislative 
department, and that the powers thus as- 
sumed by the President do not belong to 
him, but to Congress." * 

Such is the weighty testimony of this 
illustrious master with regard to the as- 
sumption of power by the President, in 
1847, over the Mexican ports in our pos- 
session. It will be found in the latest edi- 
tion of his " Commentaries " published 
during the author's life. Of course, it is 
equally appbcable to the recent assump- 
tions within our own territory. His judg- 
ment is clear in favor of Congressional 
govei*nments. 

Of course, in ordinary times, and un- 
der ordinary circumstances, neither sys- 
tem of government would be valid. A 
State, in the full enjoyment of its rights, 
would spurn a military governor or a 
Congressional governor. It would insist 
that its governor should be neither mili- 
tary nor Congressional, but such as its own 
people chose to elect ; and nobody would 
question this right. The President does 
not think of sending a military governor 
* Kent's Commentaries, Yol. I. p. 292, note b. 



to New York ; nor does Congress think 
of establishing a provisional government 
in that State. It is only with regard to 
the Rebel States that this question arises. 
The occasion, then, for the exercise of 
this extraordinary power is found in the 
Rebellion. Without the Rebellion, there 
would be no talk of any governor, wheth- 
er military or Congressional. 



STATE RIGHTS. 

Axd here it becomes important to con- 
sider the operation of the Rebellion in 
opening the way to this question. To 
this end we must understand the rela- 
tions between the States and the Na- 
tional Government, under the Constitu- 
tion of the United States. As I approach 
this question of singular delicacy, let me 
say on the threshold, that for all those 
rights of the States which are consistent 
with the peace, security, and permanence 
of the Union, according to the objects 
grandly announced in the Preamble of 
the Constitution, I am the strenuous ad- 
vocate, at all times and places. Never 
through any word or act of mine shall 
those rights be impaired ; nor shall any 
of those other rights be called in question 
by which the States are held in harmo- 
nious relations as well with each other as 
with the Union. But while thus strenu- 
ous for all that justly belongs to the States, 
I cannot concede to them immunities in- 
consistent with that Constitution which is 
the supreme law of the land ; nor can I 
admit the impeccability of States. 

From a period even anterior to the Fed- 
eral Constitution there has been a per- 
verse pretension of State Rights, which 
has perpetually interfered with the uni- 
ty of our government. Throughout the 
Revolution this pretension was a check 
upon the powers of Congress, whether 
in respect to its armies or its finances ; 
so that it was too often constrained to 
content itself with the language of ad- 
vice or persuasion rather than of com- 
mand. By the Declaration of Independ- 
ence it was solemnly declared that " these 
United Colonies are, and of right ought 



1863.] 



Our Domestic Relations. 



511 



to be, free and independent States, and 
that, as such, they have full powers to levy- 
war, to contract alliances, to establish 
commerce, and to do all other acts which 
independent States may of right do." 
Thus by this original charter the early 
colonies were changed into independent 
States, under whose protection the liber- 
ties of the country were placed. 

Early steps were taken to supply the 
deficiencies of this government, which 
was effective only through the generous 
patriotism of the people. In July, 1778, 
two years after the Declaration, Articles 
of Confederation were framed, but they 
were not completely ratified by all the 
States till March, 1781. The character 
of this new government, which assumed 
the style of " The United States of Amer- 
ica," will appear in the title of these Ar- 
ticles, which was as follows: — " Articles 
of Confederation and Perpetual Union 
between the States of New Hampshire, 
Massachusetts Bay, Rhode Island and 
Providence Plantations, Connecticut, 
New York, New Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia." 
By the second article it was declared, 
that " each State retains its sovereignty, 
freedom, and independence, and every 
power, jurisdiction, and right which is 
not by this Confederation expressly dele- 
gated to the United States in Congress 
assembled." By the third article it was 
further declared, that " the said States 
hereby severally enter into a firm league 
of friendship with each other, for their 
common defence, the security of their lib- 
erties, and their mutual and general wel- 
fare." By another article, a " commit- 
tee of the States, or any nine of them," 
was authorized in the recess to execute 
the powers of Congress. The govern- 
ment thus constituted was a compact be- 
tween sovereign States, — or, according 
to its precise language, " a firm league 
of friendship " between these States, ad- 
ministered, in the recess of Congress, by 
a "committee of the States." Thus did 
State Rights triumph. 

But its imbecility from this pretension 



soon became apparent. As early as De- 
cember, 1782, a committee of Congress 
made an elaborate report on the refusal 
of Rhode Island, one of the States, to 
confer certain powers on Congress with 
regard to revenue and commerce. In 
April, 1 783, an address of Congress to 
the States was put forth, appealing to their 
justice and plighted faith, and represent- 
ing the consequence of a failure on their 
part to sustain the Government and pro- 
vide for its wants. In April, 1 784, a sim- 
ilar appeal was made to what were called 
" the several States," whose legislatures 
were recommended to vest " the United 
States in Congress assembled " with cer- 
tain powers. In July, 1 785, a committee 
of Congress made another elaborate re- 
port on the reason why the States should 
confer upon Congress powers therein 
enumerated, in the course of which it 
was urged, that, " unless the States act 
together, there is no plan of policy into 
which they can separately enter, which 
they will not be separately interested to 
defeat, and, of course, all their measures 
must prove vain and abortive." In Feb- 
ruary and March, 1786, there were two 
other reports of committees of Congress, 
exhibiting the failure of the States to com- 
ply with the requisitions of Congress, and 
the necessity for a complete accession of 
all the States to the revenue system. In 
October, 1786, there was still another re- 
port, most earnestly renewing the former 
appeals to the States. Nothing could be 
more urgent. 

As early as July, 1782, even before 
the first report to Congress, resolutions 
were adopted by the State of New York, 
declaring " that the situation of these 
States is in a peculiar manner critical," 
and " that the radical source of most of 
our embarrassments is the want of suffi- 
cient power in Congress to effectuate that 
ready and perfect cooperation of the dif- 
ferent States on which their immediate 
safety and future happiness depend." 
Finally, in September, 1786, at Annap- 
olis, commissioners from several States, 
after declaring " the situation of the Unit- 
ed States delicate and critical, calling for 



512 



Our Domestic Relations. 



[Octobei 



an exertion of the united virtue and wis- 
dom of all the members of the Confedera- 
cy," recommended the meeting of a Con- 
vention " to devise such further provision 
as shall appear necessary to render the 
Constitution of the Federal Government 
adequate to the exigencies of the Union." 
In pursuance of this recommendation, the 
Congress of the Confederation proposed 
a Convention " for the purpose of revis- 
ing the Articles of Confederation and 
Perpetual Union between the United 
States of America, and reporting such 
alterations and amendments of the said 
Articles of Confederation as the repre- 
sentatives met in such Convention shall 
judge proper and necessary to render 
them adequate to the preservation and 
support of the Union." 

In pursuance of the call, delegates to 
the proposed Convention were duly ap- 
pointed by the legislatures of the several 
States, and the Convention assembled at 
Philadelphia in May, 1787. The present 
Constitution was the well -ripened fruit 
of their deliberations. In transmitting it 
to Congress, General Washington, who 
was the President of the Convention, in a 
letter bearing date September 17, 1787, 



"It is obviously impracticable in the 
Federal Govei-nment of these States to 
secure all rights of independent sover- 
eignty to each, and yet provide for the 
interest and safety of all. Individuals 
entering into society must give up a share 
of liberty to preserve the rest. The mag- 
nitude of the sacrifice must depend as 
well on situation and circumstance as on 
the object to be obtained. It is at all 
times difficult to draw with precision the 
line between those rights which must be 
surrendered and those which may be re- 
served ; and on the present occasion this 
difficulty will be increased by a difference 
among the several States as to their situ- 
ation, extent, habits, and particular in- 
terests. In all our deliberations we kept 
steadily in view that which appears to us 
the greatest interest of every true Amer- 
ican, — THE CONSOLIDATION OF OUR 



Union, — in which is involved our pros- 
perity, safety, perhaps our national ex- 
istence. 

" George Washington." 

The Constitution was duly transmitted 
by Congress to the several legislatures, 
by which it was submitted to conventions 
of delegates " chosen in each State by 
the people thereof," who ratified the 
same. Afterwards, Congress, by resolu- 
tion, dated September 13, 1788, setting 
forth that the Convention had reported 
" a Constitution for the people of the 
United States" which had been duly 
ratified, proceeded to authorize the ne- 
cessary elections under the new govern- 
ment. 

The Constitution, it will be seen, was 
framed in order to remove the difficulties 
arising from State Rights. So paramount 
was this purpose, that, according to the 
letter of Washington, it was kept steadi- 
ly in view in all the deliberations of the 
Convention, which did not hesitate to 
declare the consolidation of our Union 
as essential to our prosperity, safety, and 
perhaps our national existence. 

The unity of the government was ex- 
pressed in the term " Constitution," in- 
stead of "Articles of Confederation be- 
tween the States," and in the idea of " a 
more perfect union," instead of a " league 
of friendship." It was also announced 
emphatically in the Preamble : — 

" We, the people of the United States, 
in order to form a more perfect union, 
establish justice, insure domestic tran- 
quillity, provide for the common defence, 
promote the general welfare, and secure 
the blessings of liberty to ourselves and 
our posterity, do ordain and establish 
this Constitution for the United States 
of America." 

Not " we, the States," but " we, the 
people of the United States." Such is 
the beginning and origin of our Consti- 
tution. Here is no compact or league 
between States, involving the recogni- 
tion of State rights ; but a government 
ordained and established by the people of 
the United States for themselves and their 



1863.] 



Our Domestic Relations. 



513 



posterity. This government is not es- 
tablished by the Stales, nor is it establish- 
ed/or the States ; but it is established by 
the people, for themselves and their pos- 
terity. It is true, that, in the organiza- 
tion of the government, the existence of 
the States is recognized, and the origi- 
nal name of " United States " is pre- 
served ; but the sovereignty of the States 
is absorbed in that more perfect union 
•which was then established. There is 
but one sovereignty recognized, and this 
.is the sovereignty of the United States. 
To the several States is left that special 
local control which is essential to the 
convenience and business of life, while 
to the United States, as a Plural Unit, 
is allotted that commanding sovereign- 
ty which embraces and holds the whole 
country within its perpetual and irre- 
versible jurisdiction. 

This obvious character of the Consti- 
tution did not pass unobserved at the 
time of its adoption. Indeed, the Con- 
stitution was most strenuously opposed 
on the ground that the States were ab- 
sorbed in the Nation. Patrick Henry 
protested against consolidated power. In 
the debates of the Virginia Convention 
he exclaimed : — 

" And here I would make this inquiry 
of those worthy characters who compos- 
ed a part of the late Federal Convention. 
I am sure they were fully impressed with 
the necessity of forming a great consoli- 
dated government, instead of a confed- 
eration. That this is a consolidated gov- 
ernment is demonstrably clear; and the 
danger of such a government is to my 
mind very striking. I have the highest 
veneration for those gentlemen ; but, 
Sir, give me leave to demand, What 
right had they to say, ' We, the people ' f 
Who authorized them to speak the lan- 
guage of '■We, the people,' instead of 
« We, the States '?" * 

And again, at another stage of the de- 
bate, the same patriotic opponent of the 
Constitution declared succinctly : — 

" The question turns, Sir, on that poor 
little thing, the expression, ' We, the 
* Elliott's Debates, Vol. III. p. 22. 

VOL. XII. 84 



people,' instead of the States of Ameri- 
ca." * 

In the same convention another patri- 
otic opponent of the Constitution, George 
Mason, following Patrick Henry, said : — 

" Whether the Constitution is good or 
bad, the present clause clearly discovers 
that it is a National Government, and no 
longer a Confederation." J 

But against all this opposition, and in 
the face of this exposure, the Constitu- 
tion was adopted, in the name cf the peo- 
ple of the United States. Much, indeed, 
was left to the States ; but it was no 
longer in their name that the govern- 
ment was organized, while the miserable 
pretension of State " sovereignty " was 
discarded. Even in the discussions of the 
Federal Convention Mr. Madison spoke 
thus plainly : — 

" Some contend that States are sov- 
creign, when, in fact, they are only po- 
litical societies. The States never pos- 
sessed the essential rights of sovereign- 
ty. These were always vested in Con- 
gress." 

Grave words, especially when we con- 
sider the position of their author. They 
were substantially echoed by Elbridge 
Gerry of Massachusetts, afterwards Vice- 
President, who said : — 

" It appears to me that the States nev- 
er were independent. They had only 
corporate rights." 

Better words still fell from Mr. Wilson 
of Pennsylvania, known afterwards as a 
learned judge of the Supreme Court, and 
also for his Lectures on Law : — 

" Will a regard to State lights justify 
the sacrifice of the rights of men ? If 
we proceed on any other foundation than 
the last, our building will neither be solid 
or lasting." 

The argument was unanswerable then. 
It is unanswerable now. Do not elevate 
the sovereignty of the States against the 
Constitution of the United States. It is 
hardly less odious than the early preten- 
sion of sovereign power against Magna 
Charta, according to the memorable words 

* Elliott's Debates, Vol. III. p. 44. 
f Ibid. p. 29. 



514 



Out Domestic Relations. 



[October, 



of Lord Coke, as recorded by Rush- 
worth : — 

" Sovereign power is no Parliamentary 
word. In my opinion, it weakens Magna 
Charta and all our statutes ; for they are 
absolute without any saving of sover- 
eign power. And shall we now add it, 
we shall weaken the foundation of law, 
and then the building must needs fall. 
Take we heed what we yield unto. Mag- 
na Charta is such a fellow that he will 
have no sovereign." * 

But the Constitution is our Magna 
Charta, which can bear no sovereign but 
itself, as you will see at once, if you will 
consider its character. And this prac- 
tical truth was recognized at its forma- 
tion, as may be seen in the writings of our 
Rushworth, — I refer to Nathan Dane, 
who was a member of Congress under 
the Confederation. He tells us plain- 
ly, that the terms " sovereign States," 
" State sovereignty," " State rights," 
" rights of States," are not " constitu- 
tional expressions." 

POWERS OF CONGRESS. 

In the exercise of its sovereignty Con- 
gress is intrusted with large and peculiar 
powers. Take notice of them, and you 
will see how little of" sovereignty " is left 
to the States. Their simple enumeration 
is an argument against the pretension of 
State Rights. Congress may lay and col- 
lect taxes, duties, imposts, and excises, 
to pay the debts and provide for the com- 
mon defence and general welfare of the 
United States. It may borrow money on 
the credit of the United States; regu- 
late commerce with foreign nations, and 
among the several States, and with the 
Indian tribes ; establish a uniform rule 
of naturalization, and uniform laws on 
the subject of bankruptcy, throughout the 
United States; coin money, regulate the 
value thereof, and fix the standard of 
weights and measures ; establish post- 
offices and post-roads ; promote the prog- 
ress of science and the useful arts by se- 

* Rushworth's Historical Collections, Vol. I. 
p. 609. 



curing for limited times to authors and 
inventors the exclusive right to their re- 
spective writings and discoveries ; define 
and punish piracies and felonies commit- 
ted on the high seas, and offences against 
the law of nations ; declare war ; grant 
letters of marque and reprisal ; make 
rides concerning captures on land and 
water ; raise and support armies ; pro- 
vide and maintain a navy ; make rules 
for the government and regulation of 
the land and naval forces ; provide for 
calling forth the militia to execute the 
laics of the Union, suppress insurrec- 
tions, and repel invasions ; provide for 
organizing, arming, and disciplining the 
militia, and for governing such part of 
them as may be employed in the service 
of the United States, reserving to the 
States respectively the appointment of 
officers and the authority of training the 
militia according to the discipline pre- 
scribed by Congress ; and make all laws 
necessary and proper for carrying into 
execution the foregoing powers and all 
other powers vested in the Government 
of the United States. 

Such are the ample and diversified 
powers of Congress, embracing all those 
powers which enter into sovereignty. 
With the concession of these to the 
United States there seems to be little 
left for the several States. In the pow- 
er to "declare war" and to "raise and 
support armies," Congress possesses an 
exclusive power, in itself immense and 
infinite, over persons and property in the 
several States, while by the power to 
" regulate commerce " it may put limits 
round about the business of the several 
States. And even in the case of the 
militia, which is the original military or- 
ganization of the people, nothing is left 
to the States except " the appointment 
of the officers," and the authority to train 
it " according to the discipline prescrib- 
ed by Congress." It is thus that these 
great agencies are all intrusted to the 
United States, while the several States 
are subordinated to their exercise. 

Constantly, and in everything, we be- 
hold the constitutional subordination of 



1863.] 



Our Domestic Relations. 



515 



the States. But there are other provis- 
ions by which the States are expressly 
deprived of important powers. For in- 
stance : "No State shall enter into any 
treaty, alliance, or confederation ; coin 
money ; emit bills of credit ; make any- 
thing but gold and silver coin a tender 
in payment of debts." Or, if the States 
may exercise certain powers, it is only 
with the consent of Congress. For in- 
stance: "No State shall, without the con- 
sent of Congress, lay any duty of ton- 
nage, keep troops or ships of war in time 
of peace, enter into any agreement or 
compact with another State or with a for- 
eign power." Here is a magistral power 
accorded to Congress, utterly inconsist- 
ent with the pretensions of State Eights. 
Then, again : " No State shall, without 
the consent of the Congress, lay any im- 
posts or duties on imports or exports, ex- 
cept what may be absolutely necessary 
for executing its inspection laws ; and the 
net produce of all duties and imposts laid 
by any State on imports or exports shall 
be for the use of the treasury of the Unit- 
ed States ; and all such laws shall be sub- 
ject to the revision and control of the Con- 
gress." Here, again, is a similar magis- 
tral power accorded to Congress, and, as 
if still further to deprive the States of 
their much vaunted sovereignty, the laws 
which they make with the consent of Con- 
gress are expressly declared to be subject 
" to the revision and control of the Con- 
gress." But there is another instance 
still. According to the Constitution, 
" Full faith and credit shall be given in 
each State to the public acts, records, 
and judicial proceedings of every other 
State " : but here mark the controlling 
power of Congress, which is authorized 
to " prescribe the manner in which such 
acts, records, and proceedings shall be 
proved, and the effect thereof." 

SUPREMACY OF THE NATIONAL 
GOVERNMENT. 

But there are five other provisions of 
the Constitution by which its supremacy 
is positively established. 1. "The citi- 



zens of each State shall be entitled to 
all privileges and immunities of citizens 
in the several States." As Congress has 
the exclusive power to establish " an uni- 
form rule of naturalization," it may, un- 
der these words of the Constitution, se- 
cure for its newly entitled citizens " all 
privileges and immunities of citizens in 
the several States," in defiance of State 
Bights. 2. " New States may be ad- 
mitted by the Congress into this Union." 
According to these words, the States 
cannot even determine their associates, 
but are dependent in this respect upon 
the will of Congress. 3. But not con- 
tent with taking from the States these 
important powers of sovereignty, it is sol- 
emnly declared that the Constitution, and 
the laws of the United States made in 
pursuance thereof, and all treaties un- 
der the authority of the United States, 

"SHALL BE THE SUPREME LAW OF 

the land, anything in the Constitution 
or laws of any State to the contrary not- 
withstanding." Thus are State Bights 
again subordinated to the National Con- 
stitution, which is erected into the par- 
amount authority. 4. But this is done 
again by another provision, which de- 
clares that " the members of the several 
State legislatures, and all executive and 
judicial officers of the several States, shall 
be bound by oath or affirmation to sup- 
port this Constitution " ; so that not only 
State laws are subordinated to the Na- 
tional Constitution, but the makers of 
State laws, and all other State officers, 
are constrained to declare their alle- 
giance to this Constitution, thus placing 
the State, alike through its acts and its 
agents, in complete subordination to the 
sovereignty of the United States. 5. But 
this sovereignty is further proclaimed in 
the solemn injunction, that " the United 
States shall guarantee to every State in 
tins Union a republican form of gov- 
ernment, and shall protect each of them 
against invasion." Here are duties of 
guaranty and protection imposed upon 
the United States, by which their posi- 
tion is fixed as the supreme power. There 
can be no such guaranty without the 



516 



Our Domestic Relations. 



[October, 



implied right to examine and consider 
the governments of the several States ; 
and there can be no such protection with- 
out a similar right to examine and con- 
sider the condition of the several States : 
thus subjecting them to the rightful super- 
vision and superintendence of the Nation- 
al Government. 

Thus, whether we regard the large 
powers vested in Congress, the powers 
denied to the States absolutely, the pow- 
ers denied to the States without the 
consent of Congress, or those other pro- 
visions which accord supremacy to the 
United States, we shall find the preten- 
sion of State sovereignty without founda- 
tion, except in the imagination of its par- 
tisans. Before the Constitution such sov- 
ereignty may have existed ; it was de- 
clared in the Articles of Confederation ; 
but since then it has ceased to exist. It 
has disappeared and been lost in the su- 
premacy of the National Government, so 
that it can no longer be recognized. Per- 
verse men, insisting that it still existed, 
and weak men, mistaking the shadow of 
former power for the reality, have made 
arrogant claims in its behalf. When the 
Constitution was proclaimed, and George 
Washington took his oath to support it 
as President, our career as a Nation be- 
gan, with all the unity of a nation. The 
States remained as living parts of the 
body, important to the national strength, 
and essential to those currents which 
maintain national life, but plainly subor- 
dinate to the. United States, which then 
and there stood forth a Nation, one and 
indivisible. 



MISCHIEFS IN THE NAME OF STATE 
BIGHTS. 

But the new government had hardly 
been inaugurated before it was disturb- 
ed by the pestilent pretension of State 
Plights, which, indeed, has never ceased 
to disturb it since. Discontent with the 
treaty between the United States and 
Great Britain, negotiated by that purest 
patriot, John Jay, under instructions from 
Washington, in 1794, aroused Virginia, 



even at that early day, to commence an 
opposition to its ratification, in the name 
of State Rights. Shortly afterwards ap- 
peared the famous resolutions of Virginia 
and those of Kentucky, usually known as 
the " Resolutions of '98," declaring that 
the National Government was founded on 
a compact between the States, and claim- 
ing for the States the right to sit in judg- 
ment on the National Government, and 
to interpose, if they thought fit ; all this, 
as you will see, in the name of State 
Rights. This pretension on the part of 
the States increased, till, at last, on the 
mild proposition to attach a prospective 
prohibition of Slavery as a condition to 
the admission of Missouri into the Union 
as a new State, the opposition raged 
furiously, even to the extent of mena- 
cing the existence of the Union ; and 
this, too, was done in the name of State 
Rights. Ten years later, the pretension 
took the familiar form of Nullification, 
insisting that our government was only a 
compact of States, any one of which was 
free to annul an act of Congress at its 
own pleasure ; and all this in the name 
of State Rights. For a succession of 
years afterwards, at the presentation of 
petitions against Slavery, — petitions for 
the recognition of Hayti, — at the ques- 
tion of Texas, — at the Wilmot Proviso, 
— at the admission of California as a Free 
State, — at the discussion of the Compro- 
mises of 1850, — at the Kansas Ques- 
tion, — the Union was menaced ; and al- 
ways in the name of State Rights. The 
menace was constant, and it sometimes 
showed itself on small as well as great 
occasions, but always in the name of 
State Rights. When it was supposed that 
Fremont was about to be chosen Pres- 
ident, the menace became louder, and 
mingling with it was the hoarse mutter 
of war ; and all this audacity was in the 
name of State Rights. 

But in the autumn of 18G0, on the 
election of Mr. Lincoln, the case became 
much worse. Scarcely was the result of 
this election known by telegraph before 
the country was startled by other intelli- 
gence, to the effect that certain States 



1863.] 



Oar Domestic Relations. 



517 



at the South were about to put iu execu- 
tion the long-pending threat of Secession, 
of course in the name of State Rights. 
First came South Carolina, which, by an 
ordinance adopted in a State convention, 
undertook to repeal the original act by 
which the Constitution was adopted in this 
State, and to declare that the State had 
ceased to be one of the States of the 
Union. At the same time a Declaration 
of Independence was put forth by this 
State, which proceeded to organize itself 
as an independent community. This ex- 
ample was followed successively by other 
States, which, by formal acts of Secession, 
undertook to dissolve their relations with 
the Union, always, be it understood, in 
the name of State Rights. A new Con- 
federation was formed by these States, 
with a new Constitution, and Jefferson 
Davis at its head ; and the same oaths of 
loyalty by which the local functionaries 
of all these States had been bound to the 
Union were now transferred to this new 
Confederation, — of course, in utter vio- 
lation of the Constitution of the United 
States, but always in the name of State 
Rights. The ordinances of Secession 
were next maintained by war, which, 
beginning with the assault upon Fort 
Sumter, convulsed the whole country, 
till, at last, all the States of the new Con- 
federation are in open rebellion, which 
the Government of the United States is 
now exerting its energies, mustering its 
forces, and taxing its people to suppress. 
The original claim, in the name of State 
Rights, has swollen to all the proportions 
of an unparalleled war, which, in the 
name of State Rights, now menaces the 
national life. 

But the pretensions in the name of 
State Rights are not all told. While the 
ordinances of Secession were maturing, 
and before they were yet consummated, 
Mr. Buchanan, who was then President, 
declined to interfere, on the ground that 
what had been done was done by States, 
and that it was contrary to the theory of 
our government " to coerce a State." 
Thus was the pretension of State Rights 
made the apology for imbecility. Had this 



President then interfered promptly and 
loyally, it cannot be doubted that this 
whole intolerable crime might have been 
trampled out forever. And now, when 
it is proposed that Congress shall organize 
governments in these States, which are 
absolutely without loyal governments, 
we are met by the objection founded on 
State Rights. The same disastrous voice 
which from the beginning of our history 
has sounded in our ears still makes it- 
self heard ; but, alas ! it is now on the 
lips of our friends. Of course, just in 
proportion as it prevails will it be impos- 
sible to establish the Constitution again 
throughout the Rebel States. State 
Rights are madly triumphant, if, first, 
in their name Rebel governments can 
be organized, and then, again, in their 
name Congressional governments to dis- 
place the Rebel governments can be 
resisted. If they can be employed, first 
to sever the States from the Union, and 
then to prevent the Union from extend- 
ing its power over them, State Rights 
are at once a sword and buckler to the 
Rebellion. It was through the imbecili- 
ty of Mr. Buchanan that the States were 
allowed to use the sword. God forbid 
that now, through any similar imbecility 
of Congress, they shall be allowed to 
use the buckler ! 



SHALL CONGRESS ASSUME JURISDIC- 
TION OF THE REBEL STATES ? 

And now, in this discussion, we are 
brought to the practical question which 
is destined to occupy so much of public 
attention. It is proposed to bring the 
action of Congress to bear directly upon 
the Rebel States. This may be by 
the establishment of provisional govern- 
ments under the authority of Congress, 
or simply by making the admission or 
recognition of the States depend upon 
the action of Congress. The essential 
feature of this proposition is, that Con- 
gress shall assume jurisdiction of the 
Rebel States. A bill authorizing pro- 
visional governments in these States 
was introduced into the Senate by Mr, 



518 



Our Domestic Relations. 



[October, 



Harris of the State of New York, and 
was afterwards reported from the Judi- 
ciary Committee of that body ; but it was 
left with the unfinished business, when 
the late Congress expired on the fourth 
of March. The opposition to this propo- 
sition, so far as I understand it, assumes 
two forms: first, that these States are 
always to be regarded as States, with 
State rights, and therefore cannot be 
governed by Congress; and, secondly, 
that, if any government is to be estab- 
lished over them, it must be simply a 
military government, with a military 
governor, appointed by the President, 
as is the case with Tennessee and North 
Carolina. But State rights are as much 
disturbed by a military government as 
by a Congressional government. The 
local government is as much set aside 
in one case as in the other. If the Pres- 
ident, within State limits, can proceed 
to organize a military government to 
exercise all the powers of the State, 
surely Congress can proceed to organ- 
ize a civil government within the same 
limits for the same purpose ; nor can any 
pretension of State Rights be effective 
against Congress more than against the 
President, Indeed, the power belongs 
to Congress by a higher title than it be- 
longs to the President : first, because a 
civil government is more in harmony 
with our institutions, and, wherever pos- 
sible, is required ; and, secondly, because 
there are provisions of the Constitution 
under which this power is clearly derived. 
Assuming, then, that the pretension 
of State Rights is as valid against one 
form of government as against the other, 
and still further assuming, that, in the 
case of military governments, this pre- 
tension is practically overruled by the 
President at least, we are brought again 
to consider the efficacy of this pretension 
when advanced against Congressional 
governments. 

It is argued that the Acts of Secession 
are all inoperative and void, and that 
therefore the States continue precisely 
as before, with their local constitutions, 
laws, and institutions in the hands of 



traitors, but totally unchanged, and ready 
to be quickened into life by returning 
loyalty. Such, I believe, is a candid 
statement of the pretension for State 
Rights against Congressional govern- 
ments, which, it is argued, cannot be 
substituted for the State governments. 
In order to prove that the Rebel 
States continue precisely as before, we 
are reminded that Andrew Johnson con- 
tinued to occupy his seat in the Senate 
after Tennessee had adopted its Act of 
Secession and embarked in rebellion, 
and that his presence testified to the fact 
that Rebel Tennessee was still a State 
of the Union. No such conclusion is 
authorized by the incident in question. 
There are two principles of Parliamen- 
tary law long ago fixed : first, that the 
power once conferred by an election to 
Parliament is irrevocable, so that it is 
not affected by any subsequent change 
in the constituency ; and, secondly, that 
a member, when once chosen, is a mem- 
ber for the whole kingdom, becoming 
thereby, according to the words of an 
early author, not merely knight or bur- 
gess of the county or borough which 
elected him, but knight or burgess of 
England.* If these two principles are 
not entirely inapplicable to our political 
system, then the seat of Andrew John- 
son was not in any respect affected by 
the subsequent madness of his State, 
nor can the legality of his seat be any 
argument for his State. 

We are also reminded that durinw 
the last session of Congress two Sen- 
ators from Virginia represented that 
State in the Senate ; and the argument 
is pressed, that no such representation 
would be valid, if the State government 
of Virginia was vacated. This is a mis- 
take. Two things are established by 
the presence of these Senators in the 
National Senate : first, that the old State 
government of Virginia is extinct, and, 
secondly, that a new government has 
been set up in its place. It was my for- 
tune to listen to one of these Senators 
while he earnestly denounced the idea 
* See dishing, Parliamentary Law, p. 284. 



1863.] 



Our Domestic Relations. 



519 



that a State government might disap- 
pear. I could not but think that he 
strangely forgot the principle to which 
he owed his seat in the Senate, — as 
men sometimes forget a benefactor. 

It is true, beyond question, that the 
Acts of Secession are all inoperative and 
void against the Constitution of the Unit- 
ed States. Though matured in succes- 
sive conventions, sanctioned in various 
forms, and maintained ever since by 
bloody war, these acts — no matter by 
what name they may be called — are all 
equally impotent to withdraw an acre of 
territory or a single inhabitant from the 
rightful jurisdiction of the United States. 
But whffe thus impotent against the Unit- 
ed States, it does not follow that they 
were equally impotent in the work of 
self-destruction. Clearly, the Rebels, by 
utmost efforts, could not impair the Na- 
tional jurisdiction ; but it remains to be 
seen if their enmity did not act back 
with fatal rebound upon those veiy State 
Rights in behalf of which they commen- 
ced their treason. 



STATE SUICIDE. 

It is sometimes said that the States 
themselves committed suicide, so that as 
States they ceased to exist, leaving their 
whole jurisdiction open to the occupation 
of the United States under the Constitu- 
tion. This assumption is founded on the 
fact, that, whatever may be the existing 
governments in these States, they are in 
no respect constitutional, and since the 
State itself is known by the government, 
with which its life is intertwined, it must 
cease to exist constitutionally when its 
government no longer exists constitution- 
ally. Perhaps, however, it would be bet- 
ter to avoid the whole question of the life 
or death of the State, and to content 
ourselves with an inquiry into the con- 
dition of its government. It is not easy 
to say what constitutes that entity which 
we call a State ; nor is the discussion 
much advanced by any theory with re- 
gard to it. To my mind it seems a topic 
fit for the old schoolmen or a modern de- 



bating society ; and yet, considering the 
|part it has already played in this discus- 
sion, I shall be pardoned for a brief allu- 
sion to it. 

There are well-known words which 
ask and answer the question, " What con- 
stitutes a State f " But the scholarly poet 
was not thinking of a " State " of the 
American Union. Indeed, this term is 
various in its use. Sometimes it stands 
for civil society itself. Sometimes it is the 
general name for a political community, 
not unlike " nation " or " country," — as 
where our fathers, in the Resolution of In- 
dependence, which preceded the Decla- 
ration, spoke of " the State of Great Brit- 
ain." Sometimes it stands for the gov- 
ernment, — as when Louis XIV., at the 
height of his power, exclaimed, " The 
State, it is I " ; or when Sir Christopher 
Hatton, in the famous farce of " The 
Critic," ejaculates, — 

"Oh, pnrdon me, if my conjecture 's rash, 

But I surmise the State 

Some danger apprehends." 

Among us the term is most known as the 
technical name for one of the political 
societies which compose our Union. Of 
course, when used in the latter restricted 
sense, it must not be confounded with the 
same term when used in a different and 
broader sense. But it is obvious that 
some persons attribute to the one some- 
thing of the qualities which can belong 
only to the other. Nobody has suggest- 
ed, I presume, that any " State " of our 
Union has, through rebellion, ceased to 
exist as a civil society, or even as a polit- 
ical community. It is only as a State of 
the Union, armed with State rights, or at 
least as a local government, which annu- 
ally renews itself, as the snake its skin, 
that it can be called in question. But 
it is vain to challenge for the technical 
" State," or for the annual government, 
that immortality which belongs to civil 
society. The one is an artificial body, 
the other is a natural body ; and while 
the first, overwhelmed by insurrection or 
war, may change or die, the latter can 
change or die only with the extinction 



520 



Our Domestic Relations. 



[October, 



of the community itself, whatever may- 
be its name or its form. \ 
It is because of confusion in the use ' 
of this term that there has been so much' 
confusion in the political controversies 
where it has been employed. But no- 
where has this confusion led to greater 
absurdity than in the pretension which 
has been recently made in the name of 
State Rights, — as if it were reasonable 
to attribute to a technical " State " of the 
Union that immortality which belongs to 
civil society. 

From approved authorities it appears 
that a " State," even in a broader signifi- 
cation, may lose its life. Mr. Phillimore, 
in his recent work on International Law, 
says:— "A State, like an individual, may 
die," and among the various ways, he 
says, " by its submission and the dona- 
tion of itself to another country." * But 
in the case of our Rebel States there has 
been a plain submission and donation of 
themselves, — effective, at least, to break 
the continuity of government, if not to 
destroy that immortality which has been 
claimed. Nor can it make any differ- 
ence, in breaking this continuity, that 
the submission and donation, constituting 
a species of attornment, were to enemies 
at home rather than to enemies abroad, 
— to Jefferson Davis rather than to Louis 
Napoleon. The thread is snapped in one 
case as much as in the other. 

But a change of form in the actual 
government may be equally effective. 
Cicero speaks of a change so complete as 
" to leave no image of a State behind." 
But this is precisely what has been done 
throughout the whole Rebel region : there 
is no image of a constitutional State left 
behind. Another authority, Aristotle, 
whose words are always weighty, says, 
that, the form of the State being changed, 
the State is no longer the same, as the 
harmony is not the same when we mod- 
ulate out of the Dorian mood into the 
Phrygian. But if ever an unlucky peo- 
ple modulated out of one mood into an- 
other, it was cur Rebels, when they under- 

* Phillimore's International Law, Vol. I. 
p. 147. 



took to modulate out of the harmonies of 
the Constitution into their bloody discords. 

Without stopping further for these di- 
versions, I content myself with the testi- 
mony of Edmund Burke, who, in a strik- 
ing passage, which seems to have been 
written for us, portrays the extinction of 
a political community ; but I quote his 
eloquent words rather for suggestion than 
for authority : — 

" In a state of rude Nature there is no 
such thing as a people. A number of men 
in themselves have no collective capacity. 
The idea of people is the idea of a corpo- 
ration. It is wholly artificial, and made, 
like all other legal fictions, by common 
agreement. What the particular*nature 
of that agreement was is collected from 
the form into which the particular society 
has been cast. Any other is not their 
covenant. When men, therefore, break 
up the original compact or agreement 
which gives its corporate form and capa- 
city to a State, they are no longer a peo- 
ple ; they have no longer a corporate ex- 
istence; they have no longer a legal co- 
active force to bind within, nor a claim 
to be recognized abroad. They are a 
number of vague, loose individuals, and 
nothing more. With them all is to begin 
again. Alas ! they little know how many 
a weary step is to be taken before they 
can form themselves into a mass which 
has a true politic personality." * 

If that great master of eloquence could 
be heard, who can doubt that he would 
blast our Rebel States, as senseless com- 
munities who have sacrificed that corpo- 
rate existence which makes them living, 
component members of our Union of 
States ? 



STATE FORFEITURE. 



But again it is sometimes said, that the 
States, by their flagrant treason, have 
forfeited their rights as States, so as to 
be civilly dead. It is a patent and indis- 
putable fact, that this gigantic treason 
was inaugurated with all the forms of 

* Burke's Appeal from the Neio to the Old 
Whigs. 



1863.] 



Our Domestic Relations. 



521 



law known to the States ; that it was car- 
ried forward not only by individuals, but 
also by States, so far as States can per- 
petrate treason ; that the States pre- 
tended to withdraw bodily in their corpo- 
rate capacities ; — that the Rebellion, as 
it showed itself, was by States as well as 
in States; that it was by the govern- 
ments of States as well as by the people 
of States ; and that, to the common ob- 
server, the crime was consummated by 
the several corporations as well as by the 
individuals of whom they were composed. 
From this fact, obvious to all, it is ar- 
gued, that, since, according to Blackstone, 
" a traitor hath abandoned his connection 
with society, and hath no longer any 
right to the advantages which before be- 
longed to him purely as a member of the 
community," by the same principle the 
traitor State is no longer to be regarded 
as a member of the Union. But it is not 
necessary, on the present occasion, to in- 
sist on the application of any such princi- 
ple to States. 

STATE ABDICATION. 

Again it is said, that the States by their 
treason and rebellion, levying war upon 
the National Government, have abdicated 
their places in the Union ; and here the 
argument is upheld by the historic ex- 
ample of England, at the Revolution of 
1688, when, on the flight of James II. and 
the abandonment of his kingly duties, 
the two Houses of Parliament voted, that 
the monarch, " having violated the funda- 
mental laws, and having withdrawn him- 
self out of the kingdom, had abdicated the 
government, and that the throne had 
thereby become vacant." * But it is not 
necessary for us to rely on any allegation 
of abdication, applicable as it may be. 

RIGHTFUL GOVERNMENT IN THE REB- 
EL STATES VACATED. 

It only remains that we should see 
things as they are, and not seek to sub- 

* Macaulay's History of England, Vol. II. 
p. 623. 



stitute theory for fact. On this important 
question I discard all theory, whether it 
be of State suicide or State forfeiture or 
State abdication, on the one side, or of 
State rights, immortal and unimpeacha- 
ble, on the other side. Such discussions 
are only endless mazes in which a whole 
senate may be lost. And in discarding all 
theory, I discard also the question of de 
jure, — whether, for instance, the Rebel 
States, while the Rebellion is flagrant, are 
de jure States of the Union, with all the 
rights of States. It is enough, that, for 
the time being, and in the absence of a 
loyal government, they can take no part 
and perform no function in the Union, 
so that they cannot be recognized by the 
National Government. The reason is 
plain. There are in these States no lo- 
cal functionaries bound by constitutional 
oaths, so that, in fact, there are no con- 
stitutional functionaries ; and since the 
State government is necessarily compos- 
ed of such functionaries, there can be no 
State government. Thus, for instance, 
in South Carolina, Pickens and his asso- 
ciates may call themselves the governor 
and legislature, and in Virginia, Letcher 
and his associates may call themselves 
governor and legislature ; but we cannot 
recognize them as such. Therefore to all 
pretensions in behalf of State govern- 
ments in the Rebel States I oppose the 
simple FACT, that for the time being no 
such governments exist. The broad spa- 
ces once occupied by those governments 
are now abandoned and vacated. 

That patriot Senator, Andrew John- 
son, — faithful among the faithless, the 
Abdiel of the South, — began his attempt 
to reorganize Tennessee by an Address, 
as early as the 18th of March, 1862, in 
which he made use of these words : — 

" I find most, if not all, of the offices, 
both State and Federal, vacated, either 
by actual abandonment, or by the action 
of the incumbents in attempting to sub- 
ordinate their functions to a power in hos- 
tility to the fundamental law of the 
State and subversive of her national al- 
legiance." 

In employing the word " vacated," Mr. 



522 



Our Domestic Relations. 



[October, 



Johnson hit upon the very term which, 
in the famous resolution of 1688, was 
held to be most effective in dethroning 
King James. After declaring that he 
had abdicated the government, it was 
added, " that the throne had thereby be- 
come vacant" on which Macaulay happi- 
ly remarks : — 

" The word abdication conciliated pol- 
iticians of a more timid school. To the 
real statesman the simple important clause 
was that which declared the throne vacant; 
and if that clause could be carried, he 
cared little by what preamble it might 
be introduced." * 

And the same simple principle is now 
in issue. It is enough that the Rebel 
States be declared vacated, as in fact 
they are, by all local government which 
we are bound to recognize, so that the 
way is open to the exercise of a rightful 
jurisdiction. 

TRANSITION TO RIGHTFUL GOVERN- 
MENT. 

And here the question occurs, How 
shall this rightful jurisdiction be estab- 
lished in the vacated States ? Some there 
are, so impassioned for State rights, and 
so anxious for forms even at the expense 
of substance, that they insist upon the in- 
stant restoration of the old State govern- 
ments in ah 1 their parts, through the 
agency of loyal citizens, who mean- 
while must be protected in this work of 
restoration. But, assuming that all this 
is practicable, as it clearly is not, it at- 
tributes to the loyal citizens of a Rebel 
State, however few in numbers, — it may 
be an insignificant minority, — a power 
clearly inconsistent with the received 
principle of popular government, that 
the majority must rule. The seven vot- 
ers of Old Sarum were allowed to return 
two members of Parliament, because this 
place, — once a Roman fort, and after- 
wards a sheepwalk, — many generations 
before, at the early casting of the House 
of Commons, had been entitled to this 

* Macaulay's History of England, Vol. II. 
p. 624. 



representation; but the argument for 
State Rights assumes that all these rights 
may be lodged in voters as few in num- 
ber as ever controlled a rotten borough 
of England. 

Pray, admitting that an insignificant 
minority is to organize the new govern- 
ment, how shall it be done? and by 
whom shall it be set in motion ? In put- 
ting these questions I open the difficul- 
ties. As the original government has 
ceased to exist, and there are none who 
can be its legal successors, so as to ad- 
minister the requisite oaths, it is not easy 
to see how the new government can be 
set in motion without a resort to some 
revolutionary proceeding, instituted ei- 
ther by the citizens or by the military 
power, — unless Congress, in the exercise 
of its plenary powers, should undertake 
to organize the new jurisdiction. 

But every revolutionary proceeding is 
to be avoided. It will be within the rec- 
ollection of all familiar with our history, 
that our fathers, while regulating the sep- 
aration of the Colonies from the parent 
country, were careful that all should be 
done according to the forms of law, so 
that the thread of legality should con- 
tinue unbroken. To this end the Con- 
tinental Congress interfered by a super- 
vising direction. But the Tory argu- 
ment in that day denied the power of 
Congress as earnestly as it denies this 
power now. Mr. Duane, of the Conti- 
nental Congress, made himself the mouth- 
piece of this denial : — 

" Congress ought not to determine a 
point of this sort ahout instituting gov- 
ernment. What is it to Congress how 
justice is administered? You have no 
right to pass the resolution, any more 
than Parliament has. How does it ap- 
pear that no favorable answer is likely 
to be given to our petitions ? " * 

In spite of this argument, the Congress 
of that day undertook, by formal resolu- 
tions, to indicate the process by which 
the new governments should be constitut- 
ed.f 

* John Adams's Works, Vol. II. p. 490. 
f Ibid. Vol. III. pp. 17, 19, 45, 46. 



1863.] 



Our Domestic delations. 



52* 



If we seek, for our guidance, the princi- 
ple which entered into this proceeding ot 
the Continental Congress, we shall find it 
in the idea, that nothing must be left to il- 
legal or informal action, but that all must 
be°done according to rules of constitute 
and law previously ordained. Perhaps 
this principle has never been more dis- 
tinctly or powerfully enunciated than by 
Mr. Webster, in Ids speech against the 
Dorr Constitution in Rhode Island. Ac- 
cording to him, this principle is a funda- 
mental part of what he calls our Ameri- 
can system, requiring that the right of 
suJYare shall be prescribed by previous 
law, including its qualifications, the time 
and place of its exercise, and the man- 
ner of its exercise; and then again, that 
the results are to be certified to the cen- 
tral power by some certain rule, by some 
knoicn public officers, in some clear and 
definite form, to the end that two things 
may be done : first, that every man en- 
titled to vote may vote; secondly, that 
his vote may be sent forward and count- 
ed, and so he may exercise his part ot 
sovereignty, in common with his fellow- 
""-*%itizens. Such, according to Mr. Web- 



•■ When, in the course of human events, 
it becomes necessary to ascertain the will 
of the people on a new exigency, or a 
new state of things, or of opinion, the 
legislative power provides for that ascer- 
tainment by an ordinary act of legtsla- 

"""' What do I contend for ? I say that 
the will of the people must prevail, when 
it is ascertained ; but there must be some 
Uqal and authentic mode of ascertaining 
that mil ; and then the peop| may make 
what government they please. ■ • • • 

u All that is necessary here is, that the 
will of the people should be ascertained 
by some regular rule of proceeding, pre- 
scribed by previous law. . • • • 

« But the law and the Constitution, the 
whole system of American institutions, 
do not contemplate a case in which a re- 
fart will be necessary to proceedings '.ali- 
unde, or outside of the law and the Con- 
stitution, for the purpose of amending the 
frame of government." * 



CONGRESS* THE TRUE AGENT. 

But, happily, we are not constrained to 



fefceoZ Such, according^ M.Web- J^™^ proceed ing. The 
stor, are the minute forms which must be ay a can aU be OTga mzed 

followed, , we would imp^rtto ^e re^d new^ ^ ^ ^ 



the crowning character of law. And here 

are other positive words from him on this 

important point : — 

« We are not to take the will of the 

neople from public meetings, nor from 
tumultuous assemblies, by which the tim- 
id are terrified, the prudent are alarmed, 
an d by which society is disturbed. These 
are not American modes of signifying 
the will of the people, and they never 

were 

« Is it not obvious enough, that men 
cannot ret together and count themselves, 
and say they are so many hundreds and 
so many thousands, and judge of their 



by Congress, which is the natural guar- 
dian of people without any immediate 
government, and within the Jurisdiction 

of^i^ipti™ of thc Umte "' 

IiifelJPta State governments al- 
ready vacated by rebellion, the Consti- 
tution becomes, for the times the supreme 
and only law, binding alike|pn President 
and Congress, so that neither can establish 
any law or institution incompatible with 
it And the whole Rebel region, deprived 
of all local government, lapses under the 
exclusive jurisdiction of Congress, pre- 
cisely as any other territory ; or, iJPotner 
words, the lifting of the loeri govcrn- 



" man y thousands, and judge of their ^"^nole vast region with- 

own qualifications, and call themselves ^Xr government than Congress, 

the people, and set up a government ? out an. _ ^ ^ _ W:ik(V tn 

-„, .jl„ „.,* n fmen fnrtll miles off, 



Why, another set of men, forty miles off, 
on the same day, with the same propri- 
ety, with as good qualifications, and in 
as large numbers, may meet and set up 
another government 



nnless the President should undertake to 
covern it by military power. Startling 
as this proposition may seem, especially 
* Webster's Works, Vol. VI. pp. 225, 226, 
227, 223, 231. 



521 



Our Domestic Relations. 



to all who believe that « there is a divin- 
ity that doth hedge" a State, hardly less 
than a king, it will appear, on careful 
consideration, to be as well founded in 
the Constitution as it is simple and natu- 
ral, while it affords an easy and consti- 
tutional solution to our present embar- 
rassments. 

I have no theory to maintain, but only 
the truth ; and iu presenting this argu- 
ment for Congressional government, I 
simply follow teachings which I cannot 
control. The wisdom of Socrates, in the 
words of Plato, has aptly described these 
teachings, when he says : — 

" These things are secured and bound, 
even if the expression be somewhat too 
rude, with iron and adamant; and un- 
less you or some one more vigorous than 
you can break them, it is impossible 
for any one speaking otherwise than I 
now speak to speak well; since, for my 
part, I have always the same thing to 
say, that I know not how these things 
are, but that out of all with whom I have 
ever discoursed, as now, not one is able to 
say otherwise and to maintain himself." * 
Show me that I am wrong, — that this 
conclusion is not founded in the Consti- 
tution, and is not sustained by reason, — 
and I shall at once renounce it ; for, in the 
present condition of affairs, there can be 
no pride of opinion which must not fall 
at once before the sacred^^nds of 
Vi,nni '-y- N ^ as a partisflffWn 
advocate, do I make this appeal; but sim- 
ply as a citizen, who seeks, in all sincer- 
ity, to offer his contribution to the estab- 
lishment of that policy by which Union 
and Peace may be restored. 



[October, 



THKEE SOURCES OF CONGRESSIONAL 
POWER. 

If we look at the origin of this power 
in Congress, we shall find that it comes 
from three distinct fountains, any one of 
which is ample to supply it. Three foun- 
tains, generous and hospitable, will be 
found in the Constitution ready for this 
occasion. 

* The Gorgias of Plato. 



First. From the necessity of the case, 
ex necessitate ret, Congress must have 
jurisdiction over every portion of the 
United States where there is no other 
government; and since in the present 
case there is no other government, the 
whole region falls within the jurisdic- 
tion of Congress. This jurisdiction is 
incident, if you please, to that guar- 
dianship and eminent domain which be- 
long to the United States with regard 
to all its territory and the people there- 
of, and it comes into activity when the 
local government ceases to exist. It can 
be questioned only in the name of the 
local government ; but since this govern- 
ment has disappeared in the Rebel States, 
the jurisdiction of Congress is uninter- 
rupted there. The whole broad Rebel 
region is tabula rasa, or « a clean slate," 
where Congress, under the Constitution 
of the United States, may write the 
Jaws. In adopting this principle, I fol- 
low the authority of the Supreme Court 
of the United States in deterininino- the 
jurisdiction of Congress over the Territo- 
ries. Here are the words of Chief- Justice 
Marshall : — 

" Perhaps the power of governing a 
territory belonging to the United States, 
which has not, by becoming a State, ac- 
quired the means of self-government 
may result necessarily from the facts that 
it is not within the jurisdiction of any par- 
ticular State and is within the power and 
jurisdiction of the United States. The 
right to govern may be the natural con- 
sequence of the right to acquire territo- 
ry." * 

If the right to govern may be the nat- 
ural consequence of the right to acquire 
territory, surely, and by much strono-er 
reason, this right must be the natural 
consequence of the sovereignty of the 
United States wherever there is no local 
government. 

Secondly. This jurisdiction may also 
be derived from the Rights of War, which 
surely are not less abundant for Congress 
than for the President. If the P^esi- 

* American Insurance Company v. Carter 
1 Peters, p. 542. 



1863.] 



Our Domestic Relations. 



525 



dent, disregarding the pretension of State 
Eights, can appoint military governors 
within the Rebel States, to serve a tem- 
porary purpose, who can doubt that Con- 
Less can exercise a similar jurisdic- 
tion ? That of the President is derived 
from the war-powers; but these are not 
sealed to Congress. If it be asked where 
in the Constitution such powers are be- 
Btowed upon Congress, I reply, that they 
will be found precisely where the Presi- 
dent now ends his powers. But it is 
clear that the powers to " declare war, 

suppress insurrections," and to " sup- 
port armies," are all ample for this pur- 
pose It is Congress that conquers ; and 
the same authority that conquers must 
govern. Nor is this authority derived 
from any strained construction ; but it 
springs from the very heart of the Con- 
stitution. It is among those powers, la- 
tent in peace, which war and insurrec- 
tion call into being, but which are as 
intrinsically constitutional as any other 

power. . 

Even if not conceded to the President, 
these powers must be conceded to Con- 
gress. Would you know their extent ? 
They will be found in the authoritative 
texts of Public Law,— in the works of 
Grotius, Vattel, and Wheaton. They 
are the powers conceded by civilized so- 
ciety to nations at war, known as the 
Rights of War, at once multitudinous 
and minute, vast and various. It would 
be strange, if Congress could organize 
armies and navies to conquer, and could 
not also organize governments to pro- 
tect. . . 

De Tocqueville, who saw our institu- 
tions with so keen an eye, remarked, that, 
since, in spite of all political fictions, 
the preponderating power resided in the 
State governments, and not in the Na- 
tional Government, a civil war here 
- would be nothing but a foreign war in 
disguise." * Of course the natural con- 
sequence would be to give the National 
Government in such a civil war all the 
rights which it would have in a foreign 



Democracy in America, Vol. II. cb. 25, 



war. And this conclusion from the ob- 
servation of the ingenious publicist has 
been practically adopted by the Supreme 
Court of the United States in those 
recent cases where this tribunal, after 
the most learned argument, followed by 
the most careful consideration, adjudged, 
that, since the Act of Congress of July 
13th, 1861, the National Government h is 
been' waging " a territorial civil v 
in which all property afloat belonging to 
a resident of the belligerent territory is 
liable to capture and condemnation as 
lawful prize. But surely, if the National 
Government may stamp upon all resi- 
dents in this belligerent territory the char- 
acter of foreign enemies, so as to subject 
their ships and cargoes to the penalties 
of confiscation, it may perform the mild- 
er service of making all needful rules and 
regulations for the government ot this 
territory under the Constitution, so long 
as maybe requisite for the sake of peace 
and order; and since the object ot war 
is « indemnity for the past and security 
for the future," it may do everything ne- 
cessary to make these effectual. But it 
will not be enough to crush the Rebellion. 
Its terrible root must be exterminated, 
so that it may no more flaunt in bW. 
Thirdly. But there is another source 
for this jurisdiction which is common alike 
to Congress and the President. It will 
be found ,ii the constitutional provision, 
that - the United States shall guarantee 
to every State in this Union a republican 
form of government, and shall protect 
each of them against invasion." Here, 
be it observed, are words of guaranty 
and an obligation of protection. In the 
original concession to the United States 
of this twofold power there was an open 
recognition of the ultimate responsibility 
and duty of the National Government, 
conferring jurisdiction above all pr> 
ed State rights; and now the occasion 
has come for the exercise of this twofold 
power thus solemnly conceded. lhe 
words of twofold power and correspond- 
ing obligation are plain and beyond ques- 
tion. If there be any ambiguity, it is on- 
ly as to what constitutes a republican form 



526 



Our Domestic Relations. 



of government. But for the present this 
question does not arise. It is enough 
that a wicked rebellion has undertaken 
to detach certain States from the Union 
and to take them beyond the protection 
and sovereignty of the United States, 
with the menace of seeking foreign alli- 
ance and support, even at the cost of 
every distinctive institution. It is well 
known that Mr. Madison anticipated this 
precise danger from Slavery, and upheld 
tins precise grant of power in order to 
counteract this danger. His words, which 
will be found in a yet unpublished docu- 
ment, produced by Mr. Collamer in the 
Senate, seem prophetic. 
_ Among the defects which he remarked 
m the old Confederation was what he 
called "want of guaranty to the States 
of their constitutions and laws against in- 
ternal violence." In showing why this 
guaranty was needed, he says, that « ac- 
cording to republican theory, right and 
power, being both vested in the majority 
are held to be synonymous ; according to 
tact and experience, a minority may, in 
an appeal to force, be an overmatch for 
the majority " ; and he then adds, in words 
ot wonderful prescience, "where Slavery 
exists the republican theory becomes still 
more fallacious." This was written in 
April, 1787, before the meeting of the 
Convention that formed the National 
Constitution. But here we haye the ori- 
gin of the very clause in question. The 
danger which this statesman foresaw is 
now upon us. When a State fails to main- 
tain a republican government with offi- 
cers sworn according to the requirements 
of the Constitution, it ceases to be a con- 
stitutional State. The very case contem- 
plated by the Constitution has arrived 
and the National Government is invest-' 
ed with plenary powers, whether of peace 
or war. There is nothing in the store- 
house of peace, and there is nothing in 
the arsenal of war, which it may not em- 
ploy m the maintenance of this solemn 
guaranty, and in the extension of that 
protection against invasion to which it 
« Pledged. But this extraordinary pow- 
er carries with it a corresponding duty 



[October, 



Whatever shows itself dangerous to a re- 
publican form of government must be re- 
moved without delay or hesitation; and 
>f the evil be Slavery, our action will be 
bolder when it is known that the dan- 
ger was foreseen. 

In reviewing these three sources of 
power, I know not which is most com- 
plete Either would be ample alone ; but 
the three together are three times am- 
ple. Thus, out of this triple fountain, 
or, if you please, by this triple cord, do 
I vindicate the power of Congress over 
the vacated Rebel States. 

But there are yet other words of the 
Constitution which cannot be forgotten : 
Aew States may be admitted bv the 
Congress into this Union." Assuming 
that the Rebel States are no longer de 
facto States of this Union, but that the 
territory occupied by them is within the 
jurisdiction of Congress, then these words 
become completely applicable. It will 
be f 0r Congress, in such way as it shall 
think best, to regulate the return of these 
States to the Union, whether in time or 
manner. No special form is prescribed. 
But the vital act must proceed from Con- 
gress. And here again is another testi- 
mony to that Congressional power which 
under the Constitution, will restore the 
Republic. 

UNANSWERABLE REASONS FOR CON- 
GRESSIONAL GOVERNMENTS. 



Against this power I have heard no 
argument which can be called an argu- 
ment. There are objections founded 
chiefly m the baneful pretension of Stat,. 
Rights; but these objections are animat- 
ed by prejudice rather than reason. As- 
suming the impeccability of the States 
and openly declaring that States, like 
kings, can do no wrong, while, like kin-s 
they wear the « round and top of sover- 
eignty," politicians treat them with most 
mistaken forbearance and tenderness, as 
if these Rebel corporations could be dan- 
dled into loyalty. At every suggestion 
of rigor State Rights are invoked, and 
we are vehemently told not to destroy 



1863.] 



Oar Domestic Relations. 



527 



the States, when all that Congress pro- 
poses is simply to recognize the actual 
condition of the States and to undertake 
their temporary government, by provid- 
ing for the condition of political syncope 
into which they have fallen, and, during 
this interval, to substitute its own consti- 
tutional powers for the unconstitutional 
powers of the Rebellion. Of course, 
therefore, Congress will blot no star from 
the Bag, nor will it obliterate any State 
liabilities. But it will seek, according to 
its duty, in the best way, to maintain the 
great and real sovereignty of the Union, 
by upholding the flag unsullied, and by 
enforcing everywhere within its jurisdic- 
tion the supreme law of the Constitution. 
At the close of an argument already 
too long drawn out, I shall not stop to 
array the considerations of reason and 
expediency in behalf of this jurisdic- 
tion ; nor shall I dwell on the inevita- 
ble influence that it must exercise over 
Slavery, which is the motive of the Re- 
bellion. To my mind nothing can be 
clearer, as a proposition of constitution- 
al law, than that everywhere within the 
exclusive jurisdiction of the National 
Government Slavery is impossible. The 
argument is as brief as it is unanswer- 
able. Slavery is so odious that it can ex- 
ist only by virtue of positive law, plain 
and unequivocal ; but no such words can 
be found in the Constitution. Therefore 
Slavery is impossible within the exclusive 
jurisdiction of the National Government. 
For many years I have had this convic- 
tion, and have constantly maintained it. 
I am glad to believe that it is implied, if 
not expressed, in the Chicago Platform. 
Mr. Chase, among our public men, is 
known to accept it sincerely. Thus 
Slavery in the Territories is unconstitu- 
tional ;" but if the Rebel territory falls 
under the exclusive jurisdiction of the 
National Government, then Slavery will 
be impossible there. In a legal and con- 
stitutional sense, it will die at once. The 
air will be too pure for a slave. I can- 
not doubt that this great triumph has 
been already won. The moment that 
the States fell, Slavery fell also ; so that, 



even without any Proclamation of the 
President, Slavery had ceased to have a 
legal and constitutional existence in ev- 
ery Rebel State. 

But even- if we hesitate to accept this 
important conclusion, which treats Sla- 
very within the Rebel States as already 
dead in law and Constitution, it cannot 
be doubted, that, by the extension of the 
Concessional jurisdiction over the Rebel 
States, many difficulties will be removed. 
Holding every acre of soil and every in- 
habitant of these States within its juris- 
diction, Congress can easily do, by prop- 
er legislation, whatever may be needful 
within Rebel limits in order to assure 
freedom and to save society. The soil 
may be divided among patriot soldiers, 
poor-whites, and freedmen. But above 
all things, the inhabitants may be saved 
from harm. Those citizens in the Rebel 
States, who, throughout the darkness of 
the Rebellion, have kept their faith, will 
be protected, and the freedmen will be 
rescued from hands that threaten to cast 
them back into Slavery. 

But this jurisdiction, which is so com- 
pletely practical, is grandly conservative 
also. Had it been early recognized that 
Slavery depends exclusively upon the lo- 
cal covemment, and that it tails with that 
government, who can doubt that every 
Rebel movement would have been check- 
ed ? Tennessee and Virginia would nev- 
er have stirred ; Maryland and Kentucky 
would never have thought of stirring. 
There would have been no talk of neutral- 
ity between the Constitution and the Re- 
bellion, and every Border State would 
have been fixed in its loyalty. Let it be 
established in advance, as an inseparable 
incident to every Act of Secession, that it 
is not only impotent against the Constitu- 
tion of the United States, but that, on its 
occurrence, both soil and inhabitants will 
lapse beneath the jurisdiction of Congress, 
and no State will ever again pretend to 
secede. The word " territory," accord- 
ing to an old and quaint etymology, is said 
to°come from tcrreo, to terrify, because 
it was a bulwark against the enemy. A 
scholiast tells us, " Terrhorium est qmc- 



528 



Our Domestic Relations. 



[October, 



quid hostis terreudi causa constitution," 
'■ A territory is something constituted in 
order to terrify the enemy." But I know 
of no way in which our Rebel enemy 
would have been more terrified than by 
being told that his course would inevi- 
tably precipitate him into a territorial 
condition. Let this principle be adopted 
now, and it will contribute essentially to 
that consolidation of the Union which 
was so near the heart of Washington. 

The necessity of this principle is appar- 
ent as a restraint upon the lawless vin- 
dictiveness and inhumanity of the Rebel 
States, whether against Union men or 
against freedmen. Union men in Vir- 
ginia already tremble at the thought of 
being delivered over to a State govern- 
ment wielded by original Rebels pre- 
tending to be patriots. But the freed- 
men, who have only recently gained their 
birthright, are justified in a keener anx- 
iety, lest it should be lost as soon as won. 
Mr. Saulsbmy, a Senator from Delaware, 
with most instructive frankness, has an- 
nounced, in public debate, what the re- 
stored State governments will do. As- 
suming that the local governments will 
be preserved, he predicts that in 1870 
there will be more slaves in the United 
States than there were in 1860, and then 
unfolds the reason as follows, — all of 
which will be found in the " Congres- 
sional Globe " * : — 

" By your acts you attempt to free the 
slaves. You will not have them among 
you. You leave them where they are. 
Then what is to be the result ? — I pre- 
sume that local State governments will 
be preserved. If they are, if the people 
have a right to make then- own laws, and 
to govern themselves, they will not only 
reenslave every person that you attempt 
to set free, but they will reenslave the 
whole race." 

Nor has the horrid menace of reen- 
slavement proceeded from the Senator 
from Delaware alone. It has been utter- 
ed even by Mr. Willey, the mild Senator 
from Virginia, speaking in the name of 

* Thirty-Seventh Congress, Second Session, 
2d May, 13G2, Part III. p. 1923. 



State Rights. Newspapers have taken up 
and repeated the revolting strain. That 
is to say, no matter what may be done 
for Emancipation, whether by Proclama- 
tion of the President, or by Congress 
even, the State, on resuming its place in 
the Union, will, in the exercise of its sov- 
ereign power, reenslave every colored 
person within its jurisdiction ; and this 
is the menace from Delaware, and even 
from regenerated Western Virginia ! I 
am obliged to Senators for their frank- 
ness. If I needed any additional motive 
for the urgency with which I assert the 
power of Congress, I should find it in 
the pretensions thus savagely proclaimed. 
In the name of Heaven, let us spare no 
effort to save the country from this shame, 
and an oppressed people from this addi- 
tional outrage ! 

" Once free, always free." This is a 
rule of law, and an instinct of humanity. 
It is a self-evident axiom, which only ty- 
rants and slave-traders have denied. The 
brutal pretension thus fiamingly advan- 
ced, to reenslave those who have been set 
free, puts us all on our guard. There 
must be no chance or loop-hole for such 
an intolerable, Heaven-defying iniquity. 
Alas ! there have been crimes in human 
history ; but I know of none blacker than 
this. There have been acts of baseness ; 
but I know of none more utterly vile. 
Against the possibility of such a sacrifice 
we must take a bond which cannot be set 
aside, — and this can be found only in 
the powers of Congress. 

Congress has already done much. Be- 
sides its noble Act of Emancipation, it 
has provided that every person guilty of 
treason, or of inciting or assisting the Re- 
bellion, " shall be disqualified to hold any 
office under the United States." And by 
another act, it has provided that every 
person elected or appointed to any office 
of honor or profit under the Government 
of the United States shall, before enter- 
ing upon its duties, take an oath " that 
he has not voluntarily borne arms against 
the United States, or given aid, counte- 
nance, counsel, or encouragement to per- 
sons engaged in armed hostility thereto, 



1863.] 



Reviews and Literary Notices. 



529 



or sought or accepted or attempted to 
exercise the functions of any office what- 
ever under any authority, or pretend- 
ed authority, in hostility to the United 
States." * This oath will be a bar against 
the return to National office of any who 
have taken part with the Rebels. It 
thuts out in advance the whole criminal 
gang. But these same persons, rejected 
by the National Government, are left free 
to hold office in the States. And here is 
another motive to further action by Con- 
gress. The oath is well as far as it goes ; 
more must be done in the same spirit. 

But enough. The case is clear. Be- 
hold the Rebel States in arms against 
that paternal government to which, as 
the supreme condition of their constitu- 
tional existence, they owe duty and love ; 
* Act of Congress, July 2, 1862, ch. 123. 



and behold all legitimategfKKver^i 
tive, legislative, and judicial, in thes< 
States, abandoned and v*atcd. It only 
remains that Congress should enter and 
assume the proper jurisdiction. If we 
are not ready to exclaim with Burke, 
speaking of Revolutionary France, " It is 
but an empty space on the political map," 
we may at least adopt the response hurl- 
ed back by Mirabeau, that this empty 
space is a volcano red with flames and 
overflowing with lava-floods. But wheth- I 
er we deal with it as " empty space " or 
as "volcano," the jurisdiction, civil and 
military, centres in Congress, to be em- 
ployed for the happiness, welfare, and 
renown of the American people,— chang- 
ing Slavery into Freedom, and present 
chaos into a Cosmos of perpetual beauty 
and power. 



(Reprinted from the October number of the Atlantic Monthly for 1863.) 



* • 




LIBRARY OF CONGRESS 



012 027 012 6 t 



**! I 



"IN! I II | UN || HI {J {J! | 
012 027 012 6 | 



peam&tife* 
pH8.5 



